My Lords, I thank the noble Lord, Lord Beecham, and the noble and learned Lord, Lord Woolf, for their contributions to this short debate. I will take this opportunity to explain to the House in a little more detail the context and reasons for the Government’s amendment, which will enable the Secretary of State to appoint “recall adjudicators”, before going on to explain the nature and purpose of those amendments. I will then turn to the amendment the noble Lords have tabled to Clause 3, and to their Amendment 9A, which seeks to insert a new clause.
When your Lordships last debated the provisions in Part 1, concern was raised about the burden that some of the provisions would place upon the Parole Board, particularly given the increased demand for oral hearings following the Supreme Court judgment in the case of Osborn, Booth and Reilly. At the time I explained what the Parole Board and the Ministry of Justice were doing in response to that demand, and indicated that we were considering whether there may be other options to alleviate the pressure on the board.
I hope that these government amendments demonstrate to the House our commitment to supporting the board and will serve to alleviate some of the concerns that have been expressed. They will allow the board to focus its resources where they are most needed. It is only recently that it has become possible to contemplate amending the legislation in the way that we now propose, and I hope that this answers the criticisms made by the noble Lord, Lord Beecham, of the amendment and its lateness.
In July, a Supreme Court judgment was handed down in the case of Whiston v the Secretary of State for Justice. This dealt with the question of whether an offender who is subject to home detention curfew and is recalled to prison for breaching his licence conditions is entitled, under Article 5.4 of the European Convention on Human Rights, to have his detention reviewed by a court-like body—the Parole Board. The Supreme Court found that there was no such entitlement and that for all determinate sentenced offenders further detention during the licence period was satisfied, in Article 5
terms, by the original sentence imposed by the court. Therefore this does not depend on any party-political interpretation of the European Convention but on the decision of the Supreme Court.
Last week I chaired an all-party meeting in which we discussed these changes—which, of course, I accept have come late in the day. I hope that I was able to explain during the meeting to those noble Lords present the reason behind this change and why it was late, in order to give Peers an opportunity to understand what we were doing. The Whiston case is a significant change to previously established domestic case law on which the current provisions in the Criminal Justice Act 2003 are founded. Under the 2003 Act, determinate sentence recalled prisoners are entitled to have their cases referred to the Parole Board. This was to satisfy their Article 5 rights to a court-like review of their detention.
But the Whiston judgment means that the review of determinate sentence recall cases no longer has to be conducted by the board because Article 5 is not engaged. We are therefore seizing this opportunity to build into the statutory framework a new, flexible way of working which will provide for this category of case to be diverted away from the board. That is what these amendments are designed to do.
Amendment 9 inserts new Section 239A into the Criminal Justice Act 2003. This will create a power that enables the Secretary of State to appoint “recall adjudicators”. It is these adjudicators who will take on the functions relating to the release of recalled determinate sentence prisoners currently performed by the Parole Board. The Secretary of State will be able to appoint the Parole Board as a recall adjudicator to allow the board to continue to review these cases if necessary, but also to appoint other persons.
Much of the detail of how the recall adjudicator model will operate—including exactly who will be appointed and the nature of those appointments—will be the subject of further detailed development. As I indicated during the meeting, and do again in the House, the appointments will be filled by those with significant criminal justice experience. I apologise if at this stage I cannot provide noble Lords with the level of detail for which they might normally wish. I acknowledge, of course, that the as yet unknown detail about the precise operation, impact and cost of the new model is what lies behind the noble Lord’s amendment to insert a sunset or sunrise clause into these provisions. I will return to that when I respond to the amendments.
First, I shall explain to your Lordships the main features of the provisions as well as the safeguards that will make sure the system for reviewing the detention of recalled prisoners will remain fair, robust and efficient and—importantly—that risk assessment and public protection will continue to be of paramount importance in any release discussion. While the review of detention need not be undertaken independently by a court-like body or process, it will have to satisfy the common-law requirements of impartiality and procedural fairness in line with the Osborn judgment. This means that oral hearings will still be required if they are necessary in the interests of fairness to the prisoner in the
particular case and it will be necessary to interpret that requirement consistent with the Osborn decision.
Your Lordships have already agreed that Clause 8 should stand part of the Bill. This introduces a new test for the release of determinate sentence recalled prisoners. The test requires consideration to be given to whether the offender needs to be detained for the protection of the public but also whether the offender would be highly likely to breach their licence again if released. Recall adjudicators will be required to apply that test—that is, they will be under a statutory duty to consider both public protection and the risk of further non-compliance in reaching their release decisions.
A consistent and robust process will be followed by recall adjudicators. To ensure that this is the case, these amendments provide a power for the Secretary of State to issue procedural rules. Of course—this is important—there will be an opportunity for further parliamentary scrutiny, as these rules will be made by statutory instrument, subject to the negative procedure.
The Secretary of State will also have the power to appoint a chief recall adjudicator. The chief recall adjudicator, who must also be appointed as a recall adjudicator, will oversee the activities of these adjudicators and bring coherence and co-ordination to their work. To assist in this role, provision is also made for the chief adjudicator to issue guidance. Recall adjudicators will be required to carry out their functions in accordance with that guidance.
The Secretary of State will be responsible for making decisions on appointments and the termination of appointments, although the chief recall adjudicator will be able to make recommendations to the Secretary of State about the termination of appointments.
The other amendments that we have tabled in this group all flow from and are consequential to the provisions in Amendment 9 to allow for the appointment of recall adjudicators.
I hope that your Lordships will agree that these amendments will not only help to alleviate pressure on the Parole Board but will give us the opportunity to look afresh at an alternative model for reviewing the detention of determinate sentence prisoners when they are recalled to custody. In short, if these cases do not need to be dealt with by the board, we believe that they should not be. The recall adjudicator provisions will give us the flexibility that we need to put such a system in place. This is the package of government amendments that I commend to the House.
Before I sit down, I turn to the amendments tabled by the noble Lords, Lord Beecham and Lord Kennedy. The Government cannot support these amendments. Amendment 1 places a statutory duty on the Secretary of State to consult the Parole Board and to lay a report before Parliament about the resources that the board requires before the provisions in Clause 3 are implemented.
The Government are committed to ensuring that the Parole Board is always adequately resourced to fulfil its important responsibilities. The amendments that I have spoken to, which are designed to alleviate pressure on the board and to free up its resources, underline that commitment. I assure your Lordships
that any future pressures on the board arising from the implementation of other provisions in the Bill will be discussed with the board so as to ensure that the necessary arrangements and resources are in place. I can confirm to noble Lords that there have been discussions with the Parole Board, the Lord Chief Justice and the senior presiding judge about the appointment of recall adjudicators.
Clause 3 adds a small number of additional terrorist-related offences to Schedule 15B to the 2003 Act, and the impact of this on the board will be minimal. We do not believe that a duty to consult the board or to lay a report before Parliament is appropriate or necessary. With respect, and as I said in Committee, such a duty would not be a practicable approach to these provisions. Changes to the workload of an arm’s-length body are commonplace. There are governance structures in place to ensure that new pressures on the Parole Board are taken account of. As noble Lords will be aware, the Ministry of Justice is accountable to Parliament for the discharge of its responsibilities. Putting such an obligation on the face of the legislation would, I suggest, be an undue burden on Parliament.
That brings me to the other amendment tabled by the noble Lords, which would insert a sunset clause into the recall adjudicator provisions, suspending them two years after the date of commencement. Prior to this, within 18 months of commencement the Secretary of State would be required to lay before Parliament a report on the impact of these provisions. Having done so, the Secretary of State would be able to make regulations for the continuation of the provisions—those regulations to be made by statutory instrument and subject to affirmative resolution of both Houses. In effect, Parliament would have to review the impact and agree to the continuation of the provisions to avoid their suspension after two years.
I understand the concern of noble Lords that the introduction of recall adjudicators is a new and, as yet, untested concept. It is critical that we get this right, and I appreciate the recommendation by the noble Lords for greater scrutiny by this House and the other place. However, I do not believe that it would be either appropriate or helpful to have a sunset provision of this sort. I can assure your Lordships that we will continue to work closely with the board and others on the development of the recall adjudicator model, making sure that it delivers the efficiencies and benefits that we expect while we maintain, as we are obliged to do, a robust and fair process for recalled prisoners.
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I would be happy to keep your Lordships closely informed as the model is developed and to share further details of how it will work, including assessments of the resources and costs involved once those are available. Once we have developed and implemented this new flexible and more efficient model, its impact and operation will be closely monitored and reviewed; I will make a commitment to Parliament to provide it with updates and reports.
The provisions that the Government have brought forward are designed for maximum flexibility in the way in which the new model is set up and operated, subject, of course, to safeguards. However, the flexibility
means that the operation of the model can be easily adjusted and refined to make sure that it is delivering the best possible approach.
The noble Lord, Lord Beecham, asked about the number of oral hearings per year and, indeed, per month. Before the Osborn-Reilly decision, the board conducted an average of 435 oral hearings each month; that is around 5,000 a year. It is now, on average, conducting 528 oral hearings a month; that is over 6,000 a year. So there has been an overall increase in oral hearings conducted by the board, but within this the board is dealing with a greater proportion of determinate sentence oral hearings.
The noble Lord asked about the cost. The Parole Board has a total budget allocation of £13.8 million for 2014-15; that is an increase of £3 million on the board’s resource allocation of £10.8 million—although, following the Osborn case, there was an additional in-year funding provided of £1.2 million. However, we do not have a breakdown of how much of the board’s budget is spent specifically on determinate recall cases. They make up about half of the board’s total caseload, if all paper and oral hearings are included.
Therefore, I respectfully suggest that a sunset clause is both unnecessary and inappropriate. It would create uncertainty about the future of the scheme, undermining most or all of the investment and commitment that will be vital to making the new model as effective as possible. Such a clause might reduce the attraction of high-calibre, well qualified and suitable applicants to the position of recall adjudicator if they believed the scheme could be scrapped less than two years after it had been introduced. As I said at the Peers meeting, anybody who is appointed as a recall adjudicator will be given rigorous training to enable them to perform their tasks; it is not a question that they will be appointed tomorrow and begin sitting the day after.
The same uncertainty would make it difficult for the Parole Board to plan for its future workload and to develop efficient operating models if it does not know whether determinate recall cases will continue to be dealt with by recall adjudicators. The Osborn case created an additional demand for work to be performed by the Parole Board. The Whiston case has given an opportunity for the Parole Board to be relieved of some of the workload and for the setting up of a recall adjudicator system.
This is an appropriate legislative vehicle to be considered by Parliament, dealing, as it does, with the Parole Board. Ideally, the matter would have gone through all parliamentary stages but the decision came at a stage when it was not possible simply to act immediately. The matter needed to be considered carefully, and it has been considered carefully. It will be subject in due course, as I said, to parliamentary scrutiny.
This is a real opportunity to improve the system, and I trust that the assurances that I have given about the Government’s continued commitment to supporting and working with the Parole Board and the many different challenges they face, and to keeping your Lordships informed of the future details and impact of the new recall adjudicator model, will persuade the noble Lords, whose concern is understandable, to withdraw their amendments.